R v Nunan

Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW)
Evidence (Audio and Audio Visual Links) Act 1986 (NSW)
Firearms Act 1996 (NSW)
Law Enforcement Powers and Responsibilities) Act 2002 (NSW)

Cases Cited: Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811
Dowe v R [2009] NSWCCA 23
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1
NSW v Corbett [2007] HCA 32
R v Dennis [2005] NSWCA 118
R v Slattery [2002] NSWCCA 367
Ridgeway v The Queen [1994] HCA 66; (1994) 184 CLR 19
Robinson v Woolworths Ltd [2005] NSWCCA 426

Category: Principal judgment

Parties: Luke Bernard Nunan (the accused)
Director of Public Prosecutions (NSW) (Crown)

Representation: Counsel:
N Allan (for the accused)
C Triscari (for the Crown)
Solicitors:
Boom Lawyers (for the accused)
Solicitor for Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2022/254160

JUDGMENT

Notes:

1. This judgment was prepared without the advantage of a transcript.

2. No publication except to legal advisors until conclusion of any jury trial.

3. Unless otherwise indicated, a reference to a section is a reference to the Firearms Act 1996 (NSW).

Introduction

4. On 15 October 2021 a delegate of the NSW Police Commissioner signed Firearms Prohibition Order (‘FPO’) and Weapons Prohibition Order (‘WPO’) in relation to Luke Bernard Nunan.

5. It is now accepted that those Orders were served on Mr Nunan on 19 January 2022.

6. The rationale for the Order can be found in a 15 January 2022, COPS entry relating to information about – "drug supply and possession or sourcing of firearms": Voir Dire Exhibit A, pp 128 and 129.

7. During the latter half of 2002, the South East Regional Enforcement Squad (‘SERES’) planned a visit to the south coast to enforce FPOs.

8. Plain Clothes Senior Constable (‘SC’) Bell made an email request that Nunan be "added to this op”: Voir Dire Exhibit A, p 19. SC Bell noted, "I currently have an active job running on him”. Later in the email he said Nunan's risk assessment was high”: Voir Dire Exhibit A, p 19. In evidence he explained because of the possibility Nunan may have possession of a 12 gauge shotgun at the premises police where being asked to search: Evidence, 16 June 2025.

9. In August 2022 a Police intelligence bulletin also notes “information received that [redacted] and Luke Nunan [redacted] are sharing possession of a revolver firearm”: Vore Dire Exhibit A p 40.

10. On 25 August 2022 about 12 police arrived at Nunan's premises in Merimbula.

11. Police entered the ground floor of the premises through an unlocked but closed door. They found Mr Nunan sleeping inside the premises. He was “detained" and escorted outside: Evidence, Mr Battley, 17 June 2025. Police announced, "Firearms Prohibition Order search" and “cleared” the premises, by checking if any other people were there: Evidence, SC Winston 16 June 2025.

12. They also found a large number of cannabis plants in the rooms adjoining where Mr Nunan slept: Vire Dire Exhibit A, Tab 1. Police left and secured the premises. They requested and, after a three hour wait, obtained a Crime Scene Warrant (‘CSW’). After execution of the CSW, they found 178 cannabis plants under hydroponic cultivation and 1.152 kg of cannabis inside the premises. Outside the house they found another 168 cannabis plants in a green or plant house.

13. Mr Nunan was arrested the next day on 26 August 2022.

14. He was committed for trial to the District Court. He (eventually) came for trial in the June 2025 Bega sittings. By leave, an amended indictment was presented with the following counts;

15. Count 1 – Cultivate a prohibited plant, namely 168 cannabis plants: Drug Misuse and Trafficking Act 1985 (NSW), s 23(1)(a).

16. Alternative Count 2 – Have in his possession a prohibited plant, namely 168 cannabis plants: Drug Misuse and Trafficking Act, s23(1)(c).

17. Count 3 – Cultivate a prohibited plant, namely cannabis grown by enhanced indoor means in an amount not less than the commercial quantity, namely 178 plants: Drug Misuse and Trafficking Act, s 23(2)(a).

18. Alternative Count 4 – Have in his possession a prohibited plant, namely 178 cannabis plants: Drug Misuse and Trafficking Act, s23(1)(c).

19. Count 5 – Supply a prohibited drug, namely 1.452 grammes cannabis leaf: Drug Misuse and Trafficking Act, ss 25(1) and 29.

20. Mr Nunan said he was not guilty of each count and its alternate.

A pretrial hearing

16. Two preliminary issues were flagged at call-over – the legality of the search and the admissibility of the evidence obtained as consequence. This required a determination:

17. Whether a valid FPO and WPO was made and effective as of 22 August 2022?

18. Whether the entry and subsequent searches were lawful or carried out as a consequence of an impropriety?

19. And if not, whether the evidence found as a consequence was admissible at trial?: Evidence Act 1995 (NSW), s 138.

20. Issue one was resolved after some brief evidence. It is now accepted a FPO was served on Mr Nunan on 18 January 2022. It was in effect on 25 August 2022.

21. Police responded to a defence subpoena. I received as exhibits an agreed documents folder, Voir Dire Exhibit A, and other related documentation. A number of police and retired police associated with the matter were called for cross-examination by the prosecution. The original list of witnesses was reduced from 19 to 9.

Evidence summary

19. Mr Nunan was known to police prior to 2022. Applications for a FPO and a WPO were put to a delegate of the Police Commissioner by former Detective Stein in 2021. The Order was made on 15 October 2021. It was served by a highway patrol officer after Mr Nunan was stopped outside Nimmitabel on 19 January 2022.

20. Former SC Stein had applied for the order based on intelligence reports and concerns Mr Nunan was involved in drug supply and firearms offences. In evidence he said he took no direct action, as he had suspicions, "no more than that”: Evidence 17 June 2025.

21. He said that when he sought to enforce the FPO he was told by former Inspector Volf and Sergeant Marks that was not able to act on it. The reason given him, he said, were concerns arising from an Ombudsman report on police use of their Firearms Act powers, and because procedures were changing to accord with best practice. Inspector Volf had no memory of this conversation. He told me he was not aware of the Ombudsman's report: Evidence 17 June 2025.

22. A COPS narrative in relation to Mr Nunan was created by Former SC Stein on 15 January 2022: Vore Dire Exhibit A, pp 128-129. He noted:

"[Nunan] is strongly suspected to be involved in the supply and use of prohibited drugs in the Bega valley area. The POI has previous charges for firearms offences and numerous holdings suggesting he may already possess, or is in the process of attempting to source, prohibited weapons and or firearms. As a result, a firearms weapons prohibition order has been sought and granted."

23. After noting Mr Nunan had not been served and may be attempting to avoid service the narrative goes on, "There is no planned search of any properties etc regarding this Order and or service”.

24. SC Bell also had suspicions that Mr Nunan was involved in drug supply. On 10 January 2022 he had stopped Nunan while he was driving and administered a random oral fluid drug test. After it returned a positive reading, he searched Mr Nunan on suspicion of possession of drugs. None were found: Voir Dire Exhibit D, COPS entry.

25. On 26 January 2022, after the service of the FPO he stopped and searched both Mr Nunan and his car. The COPS entry records under the heading "Incident Type” – “Actual firearms legislation Firearms Prohibition Order search – vehicle”: Voir Dire Exhibit E.

26. Later in the entry it is noted that Mr Nunan, and the person with him, "attempted to avoid police by entering caravan park when police entered car park. Both POIs extensive holdings for drug supply and recent convictions detections. Nunan subject of FPO/WPO”.

27. At the conclusion of the COPS narrative SC Bell noted, "Nunan … was searched with nothing found. Primary reason suspected possession of illegal drug”: Voir Dire Exhibit F.

28. A police intelligence bulletin of 26 August 2022 also recorded a photograph of Mr Nunan and the text “information received that [redacted] Luke Noonan [redacted] sharing possession of a revolver firearm”: Voir Dire Exhibit A, pp 27 and 40.

29. SC Bell had thus been involved in three prior proactive crime scene stops of Mr Nunan in January 2022: Voir Dire Exhibits D, E and F. During the first two actions Mr Nunan was searched because he was suspected to be in possession of drugs. Constable Bell also said the second search involved the exercise of his FPO powers: Evidence 16 June 2025.

30. In August 2002 police from SERES were tasked to complete a number of FPO enforcement operations of the far south coast. SC Bell who was then with the local proactive enforcement team sent the text that asked that Mr Nunan be "added to the op”: Voir Dire Exhibit A page 19.

31. He also told the officer preparing the operation that:

"I currently have an active job running on him. The risk assessment is likely to come back as high though the risk can be negated with Nunan being monitored away from the property at the time of the execution phase": Voir Dire Exhibit A, p 15.

32. In evidence he said that he gave this risk assessment because he suspected Mr Nunan may be in possession of a firearm: Evidence, 16 June 2025.

33. SC Bell told me that he was aware of intelligence gleaned from the mobile phone of others that a person known as "carwash" may be in possession of a 12 gauge shotgun. "Carwash", he said, had the same phone number as Mr Nunan: Evidence, 16 June 2025.

34. Former SC Battley from SERES told me that Constable Bell was his "go to person" in relation to Nunan: Evidence, 17 June 2025.

35. Nunan was added to the SERES list. On the morning of 25 August 2002 there was a briefing of police involved in the operation and the proposed search. Police then attended a home in Merimbula, where it had been earlier confirmed Nunan resided. It was a two-story dwelling with residences on each level.

36. SC Winston, the current Officer in Charge (‘OIC’), was tasked with moving in from the rear of the premises. He saw police inside the premises. He entered yelling "Firearms Prohibition Order search”. With other police he cleared the premises to render the premises safe for the subsequent and planned FPO search. He said he followed normal procedure – "knock", "announce" and "clear”. He saw no one inside but was aware Mr Nunan had been taken from the premises. He then waited while a CSW was obtained so that the cannabis seen could be seized and the premises searched for associated evidence relating to drugs: Evidence, 16 June 2025.

37. He said he was tasked that day to do a FPO compliance search. He had not been briefed to anticipate other illegal activity such as drug supply; as far as he knew he was "going there to look for firearms”: Evidence 16 June 2025.

38. After the incident Assistant Commissioner (‘AC’) Cotter, who was in charge of the region, sent emails in response to his receiving situation reports noting what had been done and the results of the search: Voir Dire Exhibit A, pp 111 and 112.

39. The situation reports commenced by noting Mr Nunan's arrest for enhanced indoor cultivation and supply offences. Under the heading “Background” it noted:

"On the 18 January 2022 Firearms Prohibition Order / Weapons Prohibition Order was served on Nunan. Recent intelligence suggested Noonan had access to a revolver firearm."

40. In his first "congratulatory" email AC Cotter referred to the operation as a “human hunt”: Voir Dire Exhibit A, p 119. In a second email spoke of "… this great ‘find’ of drugs and criminality committed. I thank you for the 'hunt'… really good work and great disruption of a family, who I no doubt think they are local heavy weights. You have kept them very honest”: Voir Dire Exhibit A, p 112.

41. After the incident a “Search Warrant Operational Debrief" form was completed by former SC Battley. Under the heading "Anything unexpected?" is the comment, "Enhanced indoor hydroponic setup located on premise. CSW obtained”. Under the heading "Any deviation from operational orders?" is noted "STR not required. Location unlocked premises searched under crime scene warrant authorization”: Voir Dire Exhibit A, p 123.

42. Former Sergeant Mayer, who has a cannabis identification qualification, told me she was "called in at the last minute" to assist in the FPO operation. She said she was to be a "body" as part of the search team. She said she was asked to attend because of her drug expertise or because it was expected or hoped drugs would be found: Evidence, 17 June 2025.

43. A number of the officers required to give evidence had left the police force. Some refused to answer their subpoenas claiming appearing in Court would harm their health by aggravating symptoms of Post Traumatic Stress Disorder (‘PTSD’). I enquired of the defence whether the proposed witnesses were in fact required to give evidence. I was informed that there were matters of critical importance that had to be put to them. I asked that the recalcitrant witnesses be informed by the current OIC and Solicitor for Public Prosecutions they were required to answer their subpoenas and that I would make orders that they appear via Audio Visual Like (‘AVL’) and would make sure any questioning did not unduly aggravate their condition. They each took the opportunity to appear via AVL: *Evidence (*Audio and Audio Visual Links) Act 1986 (NSW). No objection to their giving AVL evidence was made.

44. Mr Battley was the former OIC. At the time he was with SERES. He said, it was his decision to conduct the FPO searches scheduled for the far South Coast and determine how they were to be conducted: Evidence, 17 June 2025. He did, however, rely on local police to confirm that the subject of the operation was residing at the premises on his records. He also agreed that he had received SC Bell's suggestion Mr Nunan be added to his op: Evidence 17 June 2025.

45. He said he could not recall if he had read, or been told, there were suspicions about Mr Nunan's involvement in drug supply matters, but he would have would have reviewed all available information including COPS entries about Mr Nunan and other intelligence available to him. It is accepted COPS reports contain such material: Voir Dire Exhibits D and E.

46. He denied a suggestion that the operation was assessed as "low risk" because SERES officers expected to find drugs not firearms: Evidence 17/ June 25. He noted there is a potential risk in every FPO job: Evidence, 17 June 2025.

47. He told me FPO compliance checks are triaged on two bases, the length of time since a previous check, and whether or not a check had been done at all. He told me he did not use his Body Worn Video (‘BWV’) to record the entry and detention of Mr Nunan as this was standard procedure so as not to reveal police entry techniques. He agreed the only Firearm Act material seized were some "gel blaster ammo things” which were later deemed to be not prohibited.

48. When asked by Mr Allan, Counsel for Mr Nunan, whether he was expecting to find drugs he replied, "everyone was surprised by what we found”. He recalls a female Sergeant being tasked with identifying the cannabis and playing no further role in the proceedings: Evidence, 17 June 2025.

49. Mr Volf, formerly the local Chief Inspector, had little memory of the incident because of, he said, his PTSD. He did not accept a proposition that problems with the Local Court registrar meant he was frustrated warrants would not be issued and that police, under his command, used FPOs as a shortcut. Nor did he accept a proposition he had directed local police not to enforce FPOs.

50. He said he had never had a discussion with AC Cotter about using FPOs rather than applying with search warrants. He remembers being the independent officer at the scene of the FPO search and waiting around until the CSW was obtained: Evidence, 17 June 2025. He had no recall of sending an email criticising the Local Court registrar for causing this delay.

51. Mr Hack, a former Sergeant with SERES, was a reluctant witness, who said he was (and appeared to be) suffering from PTSD symptoms. He did not recall the risk assessment emails he had authored: Voir Dire Exhibit J. That assessment noted; “residual low risk FPO Op Orders for target Nunan. Nothing to suggest that Nunan will use violence against police”. He also confirmed Mr Battley’s evidence that BWV was not used when FPOs were enforced so as not to disclose entry technique.

52. He rejected any suggestion police attended the premises looking for drugs. He said he was not aware there would be drugs at the premises because, "We went there under a Firearms Prohibition Order”. The FPO was, he said, enforced because SERES had made the assessment a compliance search was required but this required confirmation from local police that the "target" still resided there. He did not do the “recee”: Evidence, 17 June 2025.

Review of evidence

53. A submission was made that AC Cotter's email reference to a “find" with the inclusion of quotation marks, indicated an acceptance that the FPO search was a ruse. There is no evidence that AC Cotter was aware of the operation until after he received the situation report. There is no evidence to support Mr Nunan's assertion that NSW police in general, used the FPO for ulterior purpose in this matter.

54. There was a paucity of documentary material produced on subpoena about the operation. Former SC Battley told me that he rarely made a documentary record in relation to such operations other than completing standard forms: Evidence 17 June 2025. I accept Mr Allan's suggestion that this made checking his evidence difficult. A fact that requires his evidence be scrutinised carefully: R v Slattery [2002] NSWCCA 367.

55. However, at the conclusion of the evidence it was no longer suggested that SERES officers had an ulterior motive when the search was planned and executed. Nor was it suggested in submissions that former Sergeant Mayer had attended with fore knowledge drugs were likely to found.

56. The evidence established that SC Bell had an interest in Mr Nunan when he requested, he be added to the SERES operation. There was an ongoing operation in relation to him but that no material in relation to that operation was produced in answer to the subpoena. I can make no finding that this was a deliberate defiance of the Court's subpoena. I simply note, as Mr Allan properly submits, there is a lacuna in the documentary evidence. A fact that requires his evidence be scrutinised carefully.

57. However, SC Bell's evidence indicated his interest in Mr Nunan related to both drug supply and firearms matters. This assertion is supported by the existence of the August 2022 intelligence report and the notes in the situation report.

58. It was put to SC Bell that he deliberately misled the SERES officers and that the real and only reason for asking that Mr Nunan be "added to the op” was a desire to obtain evidence of drug supply and avoid the strict compliance with the search warrant provisions in part 5 Law Enforcement Powers and Responsibilities) Act 2002 (NSW) (‘LEPR Act’). Constable Bell responded he was aware of intelligence about Nunan in relation to both drugs and firearms. He was also aware that no FPO search of Mr Nunan's premises had ever taken place. He denied any impropriety.

59. There was no evidence that SC Bell held any personal animosity toward Mr Nunan. There was no evidence he had ever unsuccessfully sought a search warrant in relation to Mr Nunan. There was no evidence that his interest in Mr Nunan’s possible criminal activities related only to drug supply.

Submissions

60. Both counsel provided detailed written submission before the evidence was presented. They then spoke to those submissions: Voir Dire MFIs 1, 2 and 3.

61. Mr Allan contends that the search conducted on 22 August 2022, at the Nunan premises in Merimbula was not reasonably required, because it was not a bonafide FPO search. Rather, he says, the entry into the Merimbula premises was not conducted with the objective of determining whether an offence against s 74 has been committed as "it was in truth a drug search”: Voir Dire MFI 3 at [10]. He said that even though the SERES officers may have believed what they were doing was an FPO search they had been deliberately misled by SC Bell.

62. He submitted a close examination of the chronology of events demonstrates this fact and that the "active job" SC Bell spoke about was in relation to drugs, and drugs only.

63. Mr Allan put the primary question this way; "Did SC Bell improperly set in train the FPO search in order to obtain evidence of drug supply that he could not otherwise obtain by legitimate means?”

64. He accepted the onus on the applicant for exclusion of the evidence on the balance of probabilities was his: Evidence Act, s 142 (1). He accepted that I would take into account:

(a) The importance of the evidence in the proceedings; and (b) The gravity of the matters alleged in relation to the question: Evidence Act, s 142(2).

65. He submitted, that a close examination of the evidence, particularly the chronology of events, reveals that the only reason Mr Nunan was included in the FPO operation was to enable a suspicion that he was involved in drug supply to be investigated without engaging the strict procedures for obtaining a search warrant. He submits:

“A search of premises for something unrelated to firearms, but using a firearms power, is not using that power as is reasonably required to ensure compliance with firearms legislation." Voir Dire MFI 3 at [27].

66. Mr Allan does not suggest that the manner of search was unreasonable, nor did he raise any issue about Mr Numan’s detention (as no impugned evidence arose from that act). However, there was, in his submission, no other reason for search and that, while the SERES team may have thought they were conducting a FPO enforcement operation, they were dupes of the local police who wanted their suspicions that Mr Nunan was involved in illicit drug supply confirmed. Mr Nunan, he submits was:

"Added to a firearm search list so that the police could then 'find' (seize) cannabis related evidence. They did so without first applying for and then obtaining a search warrant…[as] is the usual requirement for what is otherwise trespass and an invasion of privacy”: Voir Dire MFI 3 at [25] and [26].

67. Relying on a passage in Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811 at [19], he submits that the scope of the search power in s 74A is reduced. He accepted that the decision in Shaba was persuasive, but he submitted a different issue arose here. Section 74A, he said, could not be construed to permit searches for any purpose. And, that if there is another purpose unrelated to the Firearms Act provisions it cannot be ignored. The fact a Firearms Act enforcement search could have been conducted because the precondition for it was met, must yield here to the possibility that here the search power was being used for an unnecessary, and thus mala fide, purpose. It was not required.

68. Mr Allan said, given that this improper use of the Firearms Act search powers, there was a clear and deliberate infringement of the accused's rights. Accordingly, section 138 Evidence Act is enlivened, and the onus falls on the prosecution to persuade the Court the evidence of the items seized, and consequence of the impropriety, both before and after the CSW was obtained, should not be admitted at trial.

69. Mr Triscari, Crown Prosecutor, for the Director of Public Prosecutions, responds that the evidence to support mala fides did not emerge at the hearing. The defence submission is, he submits, based on conjecture not evidence; and it was founded on a misunderstanding of s 74A. The defence submission does not conform with the law expressed by Justice Fagan in Shaba.

70. Mr Triscari submits that the fact that a person is subject to a FPO is a sufficient reason for police to search the premises at any time, subject to the reasonably required prerequisite. Once that precondition is met, as it was here, there was no illegality, and the evidence is admissible at trial as s 138 is not enlivened.

71. He submitted that even were I to find an impropriety occurred as a result of SC Bell's deliberate actions, it could not be regarded as so grave as to justify exclusion of all the evidence in a criminal trial for a number or serious allegations: Evidence Act, s138(3)(d). He suggested that an alternative question for me to determine was:

72. “Was it improper for a junior police officer, who suspects illegal activity relating to drugs and is aware no FPO enforcement has ever taken place, to seek the inclusion of the target list for FPO operation, knowing that the decision to execute the FPO was to be made by more senior officers?”

73. And that the answer to that question must be “no.” He submitted that even if SC Bell's primary motivation was a concern about Mr Nunan’s supply of drugs the existence of other valid reasons for a FPO search would not make what was done here improper. He submitted that when I consider the definitions of impropriety set out by the High Court and the Court of Criminal Appeal and s 138 Evidence Act considerations would not be enlivened: Ridgeway v The Queen [1994] HCA 66; (1994) 184 CLR 19; Robinson v Woolworths Ltd [2005] NSWCCA 426.

Powers to enter and search

73. Common law principles, exemplified in the decision in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 and ss 21, 99 and Part 5 LEPR Act, provide some protection against intrusion by State agencies into a person's home. The common law rules are strictly applied: see cases summarised by Kirby J in NSW v Corbett [2007] HCA 32 at [16] to [22]. In Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1 at [20] Brennan J observed:

"There is ... a tension between the common law privileges that secure the privacy of individuals in their own homes, gardens and yards and the efficient exercise of statutory powers in aid of law enforcement."

74. The statutory provisions in LEPR Act are applied according to their terms: see most recently R v Dennis [2005] NSWCA 118.

75. In 2013 Parliament amended both the Firearms and LEPR Acts to remove some apparent obstructions on the powers of police to search people and property. Where a person was subject to a FPO they made a clear policy choice; police powers should be relatively untrammelled in the interests of public safety, at the expense of a limited and highly directed intrusion upon the privacy of the inherently small class of persons against whom FPO are made: Shaba.

76. The powers of search are provided for in s 74A Firearms Act:

“(1) The powers of a police officer under this section may be exercised as reasonably required for the purposes of determining whether a person who is subject to a firearms prohibition order has committed an offence under section 74 (1), (2) or (3).

(2) A police officer may –

(a) detain a person who is subject to a firearms prohibition order, or

(b) enter any premises occupied by or under the control or management of such a person, or

(c) stop and detain any vehicle, vessel or aircraft occupied by or under the control or management of such a person,

and conduct a search of the person, or of the premises, vehicle, vessel or aircraft, for any firearms, firearm parts or ammunition.”

77. Here, relevantly the critical aspects of s 74A provide that the powers of a police officer to enter premises and conduct a search may be exercised as reasonably required for the purposes of determining whether a person (who is subject to a FPO) has committed an offence of acquire, possess or use a firearm while subject to a FPO. It is the power to enter and search that must be exercised as "reasonably required”.

78. Notably the terms "reasonably necessary" or on "reasonable grounds" are not used in s 74A.

79. The following principle can be discerned from Shaba:

(a) Subsection (1) of s 74A prescribes a criterion which limits the occasions on which and the manner in which the power of search may be exercised, by reference to its reasonableness as a means of achieving its statutory object. (b) Subs (1) limits both the occasions on which a search may be conducted and the extent of the search. The limit is whatever is "reasonably required" in order to determine whether the person subject to a prohibition order has possession of a firearm, firearm part or ammunition. (c) The power of search under s 74A(2) may be exercised when "reasonably required" and as far as "reasonably required" to determine whether an offence against s 74 has been committed, irrespective of any objective indication that that might be so. (d) The power of search that s 74A (2) confers is however closely confined. The only things that may be searched for are those of which possession by the person subject to the order would constitute (or provide evidence of an offence against s 74(1), (2) or (3), namely, firearms, firearm parts or ammunition.

Consideration

80. The Firearms Act stipulates principles and objects at s 3. In relation to those objects the CCA NSW has said:

"The courts must seek to implement the policy of the existing legislation and that is to control the possession and use of firearms in the community by honest citizens, and not simply to disarm the criminally minded": R v Tolley [2004] NSWCCA 165 at [53].

81. The objects of the Firearms Act put the overriding need to ensure public safety, above others’ rights or expectations, particularly over those citizens subject to a FPO. At hearing criticism was made of the possible use of s74A searches for an ulterior purpose.

82. Section 74A has both a direct law enforcement purpose – to determining whether a person who is subject to a FPO has committed an offence. But also has deterrent purpose – if those subject to a FPO know police can search them and their premises as is reasonably required they might be wary of committing Firearms Act offences. That a search did not produce evidence of a s 74 offence thus may not be the only measure of the efficacy of the provision.

83. Section 74A provides for an objective test that, as Justice Fagan has observed requires examination of the:

84. Occasions on which a search may be conducted; and

85. The extent of the search: Shaba at [16].

86. No grounds are required for a s 74A search – the words in the section are "reasonably required”. They must be read by reference to the purpose of the section, which is the exercise of specific powers to determine "whether an offence against s 74 has been committed".

87. Before a police officer exercises their power to enter premises of a person subject to a FPO they must be subjectively satisfied that the entry is reasonably required for the purposes of determining whether a person who is subject to a FPO has committed an offence under section 74(1).

88. The officer must form their state of mind with respect to the two criteria identified by s 74A: Shaba at [17]. The provision does not require police officers subjectively to consider anything else; just what is necessarily required to comply with or ensure compliance with the FPO.

89. The word reasonable requires an objective analysis. For a police action to be "reasonable" what was done must be:

90. Founded upon information in the possession of the police not upon mere imagination or surmise.

91. Believed by them to be true. It is the officer who must form the prescribed opinion.

92. Such as would justify a man of ordinary prudence and caution in believing that the acts contemplated here; entry to the premises and the method of entry was required: Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466 at [469].

93. Not manifestly unreasonable, not arbitrary, not capricious or irrational, that is – bonafide or not mala fide?

94. The limits on the exercise of the power are clearly set out in s 74A. There is no ambiguity. There is no reason to read into it any further limitations. A Court cannot rewrite the language of the statute without proper regard to its intended purpose: NSW v Dennis [2025] NSWCA 118 at [135].

95. Here the SERES officers made a determination to execute a FPO compliance search on Mr Nunan. Nothing they did was improper. They complied with all legislative requirements. What they did was required in order to achieve the objects of s 74A and the Firearms Act. Although contrary assertions were made at the outset of the proceedings, Mr Nunan does not now suggest otherwise.

96. If the criteria for the operation of s 74A were properly met, the fact a police officer had other operational reasons for the search, those other reasons could not render the search improper. The fact a police officer who requested the search had other operational reasons for the search could not render the search improper. The execution of a s 74A search does not require other reasons or reasonable suspicion; there is not even a reasonably necessary requirement.

97. I accept that, hypothetically, a situation could arise where a police officer’s apparent or stated belief that a s 74A search was reasonably required could be regarded as so manifestly unreasonable, arbitrary, capricious or not bona fide, that what followed was not a proper search for the purposes of s 74A: Dennis at [59].

98. If the motivation for the search was capricious, or mala fide; for example, to carry out a personal vendetta or as vindictive act of harassment, Mr Nunan’s argument that this could mean there was no genuine occasion for a search, and it was not reasonably required, might require further consideration. But that type of analysis is not supported by the evidence here. There is no evidence here to suggest any such motivation by SERES officers, local police attending the search or SC Bell (who did not attend the search as he was at a training course).

99. I can comfortably find that SC Bell made his request that Mr Nunan be “added to the op” because he had suspicions Nunan was involved in illegal drug and firearm activity. SC Bell would not have made his ‘high risk' assessment unless he had concerns Nunan may have possession of a firearm. That a more experienced SERES officer, Former Sergeant Hack, downgraded that assessment is of no consequence. SC Bell was aware no FPO search of his premises had ever been conducted. He was aware that the FPO search prerequisite had been meet.

100. Even if SC Bell had been interested and suspicious of Mr Nunan only because of his possible involvement in illegal drug supply that interest would not make his request improper. I do not have to decide the point, as there is no evidence to support Mr Nunan’s assertion SC Bell’s sole motivation for his request was to avoid the strictures imposed on the granting of search warrant requests, but even if that was his sole motivation, what was done by former SC Battley and SERES was done in accordance with the provisions of s74A.

101. The fact SC Bell may have had a number of operational reasons for requesting Mr Nunan's inclusion on the "op" list does not mean that this request was improper. This is particularly so given Parliament has made it clear that no reasons for a FPO search other than those set out in s 74A are required.

Section 138 Evidence Act

96. Had I been required to make an inquiry into and assessment of the minimum standards of conduct of what is expected and required of police officer in this particular context, I could not find SC Bell's actions were “quite inconsistent with” or “clearly inconsistent” with “those standards”: Robinson v Woolworths Ltd at [23]. But even if I did so find, the fact that the search was conducted as necessarily required by and in compliance with s 74A and after a separate and uncontroversial decision by SERES officers, would not have led me excluded the evidence on the basis argued for by the defence: Voir Dire MFI 3.

97. To the contrary, the prosecution's s 138 Evidence Act submissions were compelling: Voir Dire MFI 2. Further, all material times the relevant law enforcement officers involved in the FPO search had a bona fide belief that they were acting lawfully under the authority of s 74A. This meant, even if the request made by SC Bell was for an improper motive, that the search undertaken was lawful: for an example of similar reasoning see Dowe v R [2009] NSWCCA 23.

Conclusion

98. The prerequisite for the exercise of the power given police by s 74A is the existence of the FPO. The powers that may be exercised are set out in subsection (2). The limitations on the exercise of the power are its purposes in subsection (1) and the requirement those powers be exercised as reasonably required to achieve that purpose. Section 74A is an enforcement provision and no state of satisfaction such as a suspicion that offences are being committed is required of those giving effect to the provision.

99. Local police had obtained a FPO in relation to Mr Nunan. It had been served on him. A compliance team was visiting the area. Mr Nunan was added to their operation list so that a FPO compliance search could be conducted. That search was conducted. There was no obligation on the local police to provide any other reason for adding him to the list. He fitted the criteria for a search. His address was confirmed.

100. There was valid a search. What was done was reasonably required to fulfill the objectives of the Firearms Act. Even if there was a hope that other evidence might be obtained that would not of itself make the FPO entry and search unlawful. There is no evidence of mala fides.

101. To the contrary, the evidence before me is that each officer believed they were applying the Firearms Act and that they exercised their powers to enter premises of a person subject to a FPO being subjectively satisfied that the entry was reasonably required for the purposes of determining whether Mr Nunan, who was subject to a FPO had committed an offence under s 74(1).

102. What was discovered during the s 74A search revealed possible Drug Misuse and Trafficking Act offences. The search was suspended and a CSW lawfully obtained. There being no evidence of illegality or impropriety attaching to the FPO search or to the subsequent CSW, s 138 Evidence Act is not enlivened.

Orders

103. The proposed evidence of the results of the FPO search and subsequent CSW is admissible at trial.

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